The FISA Court Sends a Message to the Executive Branch

The Foreign Intelligence Surveillance Court, which oversees the National Security Agency's domestic wiretapping programs and approves all Foreign Intelligence Surveillance Act warrants, has subtly challenged the idea that the executive branch, and only the executive branch, can control the release of classified information.

Greg McNeal summarizes:

Previously, Rule 5 required that the FISC send all opinions to the Executive branch for redaction of classified information, specifically Rule 5(c) stated:

"On request by a Judge, the Presiding Judge, after consulting with other Judges of the Court, may direct that an Opinion be published.  Before publication, the Opinion must be reviewed by the Executive Branch and redacted, as necessary, to ensure that properly classified information is appropriately protected pursuant to Executive Order 12958 as amended by Executive Order 13292 (or its successor)."

Under proposed Rule 62, the Executive Branch review requirement is now optional:

"The Judge who authored an order, opinion, or other decision may sua sponte or on motion by a party request that it be published.  Upon such request, the Presiding Judge, after consulting with other Judges of the Court, may direct that an order, opinion or other decision be published.  Before publication, the Court may, as appropriate, direct the Executive Branch to review the order, opinion, or other decision and redact it as necessary to ensure that classified information is appropriately protected pursuant to Executive Order 13526 (or its successor)."  

Just yesterday, the 9th circuit court of appeals preserved the executive branch's ability to assert the State Secrets Privilege in cases where national security could be jeopardized by even the discovery phase of a trial. The only consideration that mattered to the court is whether the information's release could actually damage national security. The court gave lip service to the idea that the executive and judicial branches were jointly and independently capable of making that decision, but it acknowledged that, for all intents and purposes, the executive branch would be very rarely second guessed. That makes the SSP absolute.

But the FISC, which regularly deals with highly classified information involving sources and methods, now wants to positively assert that it has the authority, in determining when and whether to release information about cases, to order the executive branch to figure out the appropriate redactions. Before, the executive branch could redact whatever it wanted. Now, the court wants to decide whether the executive branch can redact whatever it wants. 

It is not clear to me whether the court will get its way. I expect the intelligence community, the Justice Department and even Congress to weigh in. FISC judges don't talk to the press, so it's not clear why they've decided to change their rules in this way.